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KALAMAZOO – A recent concurring opinion by a Michigan court of appeals judge that the state's nearly 18-month-old medical marijuana law is overly broad and lacks sufficient specificity was nothing more than grandstanding, according to local medical marijuana advocates.
"It was less of a legal opinion and more like an editorial," said John Targowski, a Kalamazoo attorney who has represented several clients in medical marijuana-related cases since the law took effect in April 2009. "To be honest, it's kind of scary."
In the 30-page concurring opinion, Judge Peter O'Connell urged lawmakers to refine and set clearer rules for the law, which he said left local judges, prosecutors and defense attorneys often confused on how to follow it.
The judge also stated that he law flies in the face of federal law and other state laws and lacked clear authority for doctors, people who want to use marijuana and businesses that want to dispense it.
O'Connell was part of a three-judge panel that upheld a decision by a lower court to reinstate drug charges against two people in Oakland County who were caught with marijuana plants last year. A doctor had said they would benefit from medical marijuana, but they didn't get a state card until it became available a month later.
The law allows for qualifying patients with a debilitating condition – such as cancer, HIV/AIDS, multiple sclerosis and a host of other illnesses – to possess up to 12 marijuana plants and up to 2.5 ounces of usable marijuana. Voters overwhelmingly passed it in November 2008.
O'Connell wrote that medical marijuana users "who proceed without due caution" could "lose both their property and their liberty" if they unwittingly don't follow the rules of the law.
"Our legislative and administrative officials must make a choice: They can either clarify the law with legislative refinements and a comprehensive set of administrative rules, or they can do nothing," he wrote. "In this situation, no decision is, in fact, a decision to do nothing."
One of those areas is the so-called "affirmative defense" clause in the law, which states that a medical marijuana user who has a doctor's recommendation to use the drug but doesn't yet possess a state-issued ID card indicating they are a registered user, is shielded from prosecution.
The law states that a copy of the submitted application to the state can be used as a temporary ID card if the applicant hasn't received their ID card or a rejection letter within 20 days of submitting their application for the card. Prosecutors in local cases on the issue have contended that the clause is an ambiguous element of the law.
The judge noted that patients or their caregivers may grow marijuana, but there isn't a provision for the legal purchase of marijuana seeds or plants. The law states that it is legal for registered patients to share their medical marijuana with other registered patients, however.
"Another oddity is that the act allows a patient to possess 2.5 ounces of marijuana and 12 plants," the judge wrote. "What is the legal consequence if the plants are all harvested at the same time and they happen to produce more than 2.5 ounces?"
O'Connell also pointed out that 18-year-old high school students possibly could use medical marijuana, yet the law states that marijuana can't be possessed at schools.
Where there is ambiguity, judges should seek to understand what voters wanted when they passed the law, Targowski said, not nullify its intent. He, like several area medical marijuana proponents, is expecting the law to wind-up before the Michigan Supreme Court.
Greg Francisco, executive director of the Michigan Medical Marijuana Association, said O'Connell's opinion was "more of a diatribe than a legal analysis" of the law.
"He came across more like a philosopher king," Francisco said. "He should be writing fiction. It was not nuanced at all."
Still, he welcomed the opinion.
"He did us a favor," he said. "It outlines our opponents' arguments for us. It lets us know where they stand."
NewsHawk: MedicalNeed:420 MAGAZINE
Source:Michigan Local News, Breaking News, Sports & Weather - MLive.com
Author: Chris Killian
Contact: Contact Us - MLive.com
Copyright: 2010 Michigan Live LLC.
Website:Local medical-marijuana proponents dismiss Michigan appellate judge's opinion | MLive.com
"It was less of a legal opinion and more like an editorial," said John Targowski, a Kalamazoo attorney who has represented several clients in medical marijuana-related cases since the law took effect in April 2009. "To be honest, it's kind of scary."
In the 30-page concurring opinion, Judge Peter O'Connell urged lawmakers to refine and set clearer rules for the law, which he said left local judges, prosecutors and defense attorneys often confused on how to follow it.
The judge also stated that he law flies in the face of federal law and other state laws and lacked clear authority for doctors, people who want to use marijuana and businesses that want to dispense it.
O'Connell was part of a three-judge panel that upheld a decision by a lower court to reinstate drug charges against two people in Oakland County who were caught with marijuana plants last year. A doctor had said they would benefit from medical marijuana, but they didn't get a state card until it became available a month later.
The law allows for qualifying patients with a debilitating condition – such as cancer, HIV/AIDS, multiple sclerosis and a host of other illnesses – to possess up to 12 marijuana plants and up to 2.5 ounces of usable marijuana. Voters overwhelmingly passed it in November 2008.
O'Connell wrote that medical marijuana users "who proceed without due caution" could "lose both their property and their liberty" if they unwittingly don't follow the rules of the law.
"Our legislative and administrative officials must make a choice: They can either clarify the law with legislative refinements and a comprehensive set of administrative rules, or they can do nothing," he wrote. "In this situation, no decision is, in fact, a decision to do nothing."
One of those areas is the so-called "affirmative defense" clause in the law, which states that a medical marijuana user who has a doctor's recommendation to use the drug but doesn't yet possess a state-issued ID card indicating they are a registered user, is shielded from prosecution.
The law states that a copy of the submitted application to the state can be used as a temporary ID card if the applicant hasn't received their ID card or a rejection letter within 20 days of submitting their application for the card. Prosecutors in local cases on the issue have contended that the clause is an ambiguous element of the law.
The judge noted that patients or their caregivers may grow marijuana, but there isn't a provision for the legal purchase of marijuana seeds or plants. The law states that it is legal for registered patients to share their medical marijuana with other registered patients, however.
"Another oddity is that the act allows a patient to possess 2.5 ounces of marijuana and 12 plants," the judge wrote. "What is the legal consequence if the plants are all harvested at the same time and they happen to produce more than 2.5 ounces?"
O'Connell also pointed out that 18-year-old high school students possibly could use medical marijuana, yet the law states that marijuana can't be possessed at schools.
Where there is ambiguity, judges should seek to understand what voters wanted when they passed the law, Targowski said, not nullify its intent. He, like several area medical marijuana proponents, is expecting the law to wind-up before the Michigan Supreme Court.
Greg Francisco, executive director of the Michigan Medical Marijuana Association, said O'Connell's opinion was "more of a diatribe than a legal analysis" of the law.
"He came across more like a philosopher king," Francisco said. "He should be writing fiction. It was not nuanced at all."
Still, he welcomed the opinion.
"He did us a favor," he said. "It outlines our opponents' arguments for us. It lets us know where they stand."
NewsHawk: MedicalNeed:420 MAGAZINE
Source:Michigan Local News, Breaking News, Sports & Weather - MLive.com
Author: Chris Killian
Contact: Contact Us - MLive.com
Copyright: 2010 Michigan Live LLC.
Website:Local medical-marijuana proponents dismiss Michigan appellate judge's opinion | MLive.com
